United States v. Brian Lucas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN KEITH LUCAS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00158-F-5)
Submitted: June 15, 2012 Decided: June 29, 2012
Before TRAXLER, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Jorgelina E. Araneda, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, Kristine L. Fritz,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Keith Lucas was convicted and sentenced for his
participation in an armed bank robbery. On appeal, he contests
his competency to stand trial and challenges three aspects of
his sentence. For the reasons that follow, we affirm Lucas’s
conviction, vacate his sentence, and remand for resentencing in
light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc).
I.
A. *
Trial testimony established that prior to December 12,
2008, Appellant Lucas, along with Marcus Wiley, Anthony
Atkinson, and Jerry Barnes, met on several occasions to discuss
plans to rob a Branch Banking and Trust Company (“BB&T”) in Elm
City, North Carolina. According to the plan, Barnes would serve
as a lookout while Lucas, Wiley, and Atkinson entered the bank.
On the morning of December 12, 2008, Lucas, Wiley,
Atkinson, and Barnes drove to the bank to scout the general area
for law enforcement personnel. At some point during this
*
In a case arising from these same general facts, we
recently affirmed the conviction and sentence of one of Lucas’s
co-conspirators. See United States v. Barnes, No. 10-4545, 2012
WL 1655377 (4th Cir. May 11, 2012).
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morning ride-around, the group approached Matthew Farr at a
Short Stop convenience store. Although everyone in the vehicle
spoke to Farr, Farr testified that Lucas specifically requested
his help, saying “they needed a car.” J.A. 195. Farr agreed to
help and testified that Lucas later instructed him on where to
park his vehicle and wait while they were robbing the bank.
Later that morning, Lucas, Wiley, and Atkinson met up
with Vernon Atkinson (“BJ”), a co-conspirator who had previously
agreed to drive them to and from the bank. BJ drove Lucas,
Wiley, and Atkinson toward the BB&T, dropped them off on a
street right behind the bank, and waited in his vehicle for
their return. Barnes drove separately and parked his vehicle in
front of a pharmacy that was located directly across the street
from the BB&T. The location of Barnes’s vehicle prevented
anyone in the drug store from seeing people entering or exiting
the bank.
Lucas, Wiley, and Atkinson entered the bank wearing
masks and gloves. Lucas entered first, yelling “Get down! Get
down on the ground!” J.A. 419. He proceeded to the desk of the
bank’s relationship banker and assaulted her, pushing her to the
ground, “mashing” her face into the cement floor, and yelling,
“I know who you are! I know your children! I know where you
live!” J.A. 419. He then dragged her down the hall and, while
she prayed out loud, screamed at her to “Shut up!” J.A. 419.
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Meanwhile, Wiley and Atkinson approached the tellers. Lucas had
previously instructed Wiley to go behind the counter when he
entered the bank, and Wiley complied with this instruction.
Atkinson threatened the tellers with a .380 caliber revolver
while Wiley gathered together over $28,000.
The three men then left the bank and ran to BJ’s car.
BJ drove them to Farr’s car, which was parked a few blocks away
according to Lucas’s instructions, and Lucas, Wiley, and
Atkinson got out of BJ’s car and into Farr’s car. Farr
testified that Lucas then instructed him to drive to Sleepy
Hollow, a pond outside of Elm City, and explained how to get
there. Farr further testified that once at Sleepy Hollow, Lucas
gave him $1,000 of the money stolen from the bank for his
assistance.
B.
Lucas was indicted for conspiracy to commit armed bank
robbery, see 18 U.S.C. § 371 (“Count 1”); committing (or aiding
and abetting) armed bank robbery, see 18 U.S.C. § 2113(a), (d);
id. § 2 (“Count 2”); and aiding and abetting the use and
carrying of a firearm during a crime of violence, see 18 U.S.C.
§ 924(c)(1)(A)(ii); id. § 2 (“Count 3”). On July 2, 2009, Lucas
executed a written plea agreement calling for him to plead
guilty to Counts 2 and 3 of the indictment.
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Approximately two months later but prior to his
arraignment, counsel for Lucas filed a Motion to Determine
Mental Competency, pursuant to 18 U.S.C. § 4241. The district
court allowed the motion and ordered Lucas to undergo a
psychological or psychiatric examination. The evaluating
psychologist found that Lucas was malingering and concluded that
he was competent to stand trial. Despite these findings,
several months later, counsel for Lucas moved the court for a
second mental health evaluation based on alleged deteriorating
conditions. The court ordered the evaluation, and the
psychologist again concluded that Lucas was competent to stand
trial.
During Lucas’s arraignment on April 12, 2010, the
district court asked Lucas if he wished to plead guilty
consistent with the plea agreement, but Lucas did not respond.
Consequently, the court refused to accept his plea agreement,
and the case went to trial, where a jury convicted Lucas of all
three counts in the indictment. At sentencing, the district
court found that Lucas qualified as a career offender under
U.S.S.G. § 4B1.1 (2009). After applying a sentence enhancement
for Lucas’s managerial role in the conspiracy, the district
court imposed a sentence of 480 months’ imprisonment.
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II.
On appeal, Lucas contests his competency to stand
trial and challenges three aspects of his sentence. We begin by
addressing Lucas’s competency challenge.
A.
Lucas argues that the district court erred in
proceeding to trial because Lucas was allegedly incompetent to
do so. We construe this claim as a challenge to the district
court’s factual finding of competency, which we review for clear
error. See United States v. Robinson, 404 F.3d 850, 856 (4th
Cir. 2005). “[T]he defendant has the burden, ‘by a
preponderance of the evidence [to show] that the defendant is
presently suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings
against him or to assist properly in his defense.’” Id. (second
alteration in original) (quoting 18 U.S.C. § 4241(d)).
The district court relied on two psychological
evaluations that found Lucas competent to stand trial. See
United States v. Mason, 52 F.3d 1286, 1290 (4th Cir. 1995)
(“Medical opinions are usually persuasive evidence on the
question of whether a sufficient doubt exists as to the
defendant’s competence.” (internal quotation marks omitted)).
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Apart from explaining that his interactions with Lucas conflict
with the psychological reports, counsel for Lucas presented no
evidence to the contrary. Thus, the district court did not
clearly err in finding Lucas competent to stand trial.
B.
Lucas also challenges three aspects of his sentence.
His first claim is that the district court erred in denying him
a sentence reduction for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1(a). Lucas, however, refused to plead
guilty, proceeded to trial, and put the government to its burden
of proof as to the essential factual elements of guilt. Thus,
the district court did not clearly err in denying Lucas a
sentence reduction for acceptance of responsibility. See United
States v. Hargrove, 478 F.3d 195, 198 (4th Cir. 2007).
Lucas next challenges the district court’s application
of a three-level sentence enhancement for his role as a “manager
or supervisor” in the conspiracy, pursuant to U.S.S.G.
§ 3B1.1(b). Testimony at trial, however, revealed that Lucas
was involved in planning the robbery, helped recruit Farr, paid
Farr for his assistance, and directed the activities of Farr and
Wiley. Therefore, the district court did not clearly err in
applying this aggravating role enhancement. See United States
v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).
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Finally, Lucas argues that the district court
improperly characterized him as a career offender under
§ 4B1.1(a) of the Sentencing Guidelines. “We review de novo a
question concerning whether a prior state conviction qualifies
as a prior felony conviction under the career offender
provision.” United States v. Jones, 667 F.3d 477, 482 (4th Cir.
2012).
A defendant is a career offender if (1) the
defendant was at least eighteen years old at the time
the defendant committed the instant offense of
conviction; (2) the instant offense . . . is a felony
that is . . . a crime of violence . . .; and (3) the
defendant has at least two prior felony convictions of
. . . a crime of violence . . . .
U.S.S.G. § 4B1.1(a). To qualify as a “crime of violence” for
the purposes of § 4B1.1(a), an offense must be “punishable by
imprisonment for a term exceeding one year.” Id. § 4B1.2(a).
The presentence report categorized two prior North
Carolina offenses as predicate offenses for the career offender
guideline: a 2003 conviction for common law robbery and a 2004
conviction for larceny from the person. Lucas received a
suspended 13-16 month sentence for the 2003 offense and an 8-10
month sentence for the 2004 offense. Lucas contends that the
2004 offense, for which he received an 8-10 month sentence,
cannot serve as a predicate offense.
At the time of sentencing, the rule in this Circuit
was that “a prior North Carolina conviction was for a crime
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punishable by imprisonment for a term exceeding one year, if any
defendant charged with that crime could receive a sentence of
more than one year.” United States v. Harp, 406 F.3d 242, 246
(4th Cir. 2005) (internal citation and quotation marks omitted).
After sentencing in this case, however, we overruled Harp and
held that under North Carolina’s structured sentencing scheme,
an offense is punishable for a term exceeding one year only if
the particular defendant before the court could have received
such a sentence based on his criminal history and the nature of
his offenses. See Simmons, 649 F.3d at 241-45. Therefore, in
light of Simmons, we vacate Lucas’s sentence and remand for
resentencing.
III.
For the foregoing reasons, we affirm Lucas’s
conviction, vacate his sentence, and remand for resentencing
consistent with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the Court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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